Trying to level the playing field

In a persuasive ruling earlier this month, a majority of the United States Court of Appeals for the Sixth Circuit struck down Michigan's ban on race-conscious affirmative action policies. The ban violated the United States Constitution's equal protection clause by placing an unfair burden on racial minorities seeking to change those policies.

The ban, known as Proposal 2 and approved in a state referendum in 2006, amended the State Constitution to "prohibit all sex- and race-based preferences in public education, public employment, and public contracting."

The court's 8-to-7 decision focused not on admissions policies per se but on the fact that the process by which the ban was approved -- the referendum leading to a constitutional amendment -- would inevitably require people who wished to reverse it "to surmount more formidable obstacles than those faced by other groups to achieve their political objectives."

Writing for the majority, Judge R. Guy Cole Jr. argued that a black student seeking a race-conscious admissions policy would have to undertake the "long, expensive and arduous process" of amending the state constitution all over again.

But students seeking to change other admissions policies -- for example, to favor applicants whose relatives attended the school -- could resort to a variety of readily available means, including lobbying the admissions committee or the university's leaders.

"The existence of such a comparative structural burden," Judge Cole wrote, "undermines the equal protection clause's guarantee that all citizens ought to have equal access to the tools of political change."

The result of the court's sound ruling is a level playing field, as the Constitution demands. But the issue may not be settled.

The Ninth Circuit has upheld a California affirmative-action ban that was a model for Michigan's. With a conflict in the circuits on this issue, the Supreme Court may be persuaded it is ripe for review.